Outrageous - But Is It Actionable?

By William G. Cosmas of Fitch Law Partners LLP posted in Business Litigation on Thursday, February 25, 2016.

With the advent - and ubiquity - of the internet and social media has come an exponential increase in the potential for the publication of negative statements about individuals, corporations, or other entities. While such statements may hurt feelings, thanks to the First Amendment they may not provide the basis for legal action in Massachusetts unless they meet the standard for defamation, which encompasses libel (written words) and slander (spoken words). See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30 (2003). To succeed, a defamation plaintiff must prove the following: (1) the defendant made a statement "of and concerning" the plaintiff, to a third party; (2) the statement could damage the plaintiff's reputation in the community; (3) the defendant was at fault in making the statement, whether negligently where the subject is a private individual or with actual malice in the case of a public official or public figure; and (4) the statement caused the plaintiff economic harm or otherwise fits four specific criteria to be actionable without proof of economic loss. Scholz v. Delp, 473 Mass. 242, 249 (2015). Regarding (3), above, the First Amendment grants greater protection to statements made about public figures or about matters of public concern, making defamation claims in those contexts significantly more difficult to prove.

For similar reasons, the First Amendment requires that only statements of fact - and not statements of opinion - may form the basis for a defamation claim. "Statements of pure opinion are constitutionally protected, but there is no constitutional value in false statements of fact." Scholz, 473 Mass. at 249-50 (quoting King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987) and Nat'l Ass'n of Gov't Emp. v. Cent. Broad. Corp., 379 Mass. 220, 227 (1979)). The question falls to the judge as a matter of law "if the statement unambiguously constitutes either fact or opinion" and to the fact-finder (likely a jury) "if the statement reasonably can be understood both ways." See id. at 250 (quoting King, 400 Mass. at 709).

Determining whether a statement is fact or opinion is not as easy as it may seem. Including the words "in my opinion" does not inoculate a statement of fact from a potential defamation action, but an allegedly defamatory statement must contain "objectively verifiable facts" to be actionable. See id. However, an apparent statement of opinion that implies "the existence of undisclosed defamatory facts on which the opinion purports to be based" may constitute defamation. See id. at 252-53.